City of Las Cruces v. N.M. Pub. Regulation Comm'n
| Decision Date | 25 June 2020 |
| Docket Number | NO. S-1-SC-37458,S-1-SC-37458 |
| Citation | 476 P.3d 880 |
| Parties | CITY OF LAS CRUCES, Appellant, v. NEW MEXICO PUBLIC REGULATION COMMISSION, Appellee, and El Paso Electric Company, Four Peaks Energy LLC, and ENERGYneering Solutions, Inc., Intervenors-Appellees. In the Matter of the Application for Approval of El Paso Electric Company ’s 2018 Renewable Energy Plan Pursuant to the Renewable Energy Act and 17.9.572 NMAC, and Revised Rate No. 38-RPS Cost Rider, New Mexico Public Regulation Commission Case. No. 18-00109-UT |
| Court | New Mexico Supreme Court |
Stevens Law LLC, Anastasia S. Stevens, Santa Fe, NM, Jennifer Vega-Brown, City Attorney, Marcia B. Driggers, Senior Assistant City Attorney, Las Cruces, NM, for Appellant
Russell R. Fisk, Santa Fe, NM, for Appellee
Nancy Brooke Burns, Santa Fe, NM, Jones, Snead, Wertheim & Clifford, P.A., Carol A. Clifford, Jerry Todd Wertheim, Santa Fe, NM, for Intervenor El Paso Electric Company
Keleher & McLeod, P.A., Thomas C. Bird, Albuquerque, NM, for Intervenors Four Peaks Energy LLC and ENERGYneering Solutions, Inc.
{1} With this opinion, we consider whether a party must request the stay of an order issued by the New Mexico Public Regulation Commission (Commission) before seeking a stay from this Court. In the case before us, the City of Las Cruces (City) did not ask the Commission to stay its final order and, instead, sought a stay directly from this Court. After careful consideration of the parties’ positions, we denied the City's motion for stay. We are compelled to explain the rationale for our decision because there has been a lack of clarity regarding the appropriate procedure for seeking the stay of a final Commission order. We have not formally addressed this issue and have been inconsistent on this procedural question. For example, in 2018 we granted a public utility's motion for stay in Order at 1-2, Southwestern Public Service Co. v. New Mexico Public Regulation Commission , No. S-1-SC-37248 (Sept. 26, 2018), despite the utility's failure to first seek a stay from the Commission. See Motion at 4, Sw. Pub. Serv. Co. , No. S-1-SC-37248 (Sept. 10, 2018) (). However, we also denied stays in Order at 1-2, New Mexico Industrial Energy Consumers v. New Mexico Public Regulation Commission , No. S-1-SC-36772 (Feb. 27, 2018), and in Order at 2, Public Service Co. of New Mexico v. New Mexico Public Regulation Commission , No. S-1-SC-36115 (Dec. 12, 2016). As we explain below, we conclude that the Rules of Appellate Procedure required the City to request a stay from the Commission in the first instance before seeking one directly from this Court. With this opinion, we are not announcing a change in law or procedure but affirming existing law requiring a party to request a stay from the administrative body before seeking one from an appellate court.
{2} We originally intended this opinion to cover only the limited procedural issue of whether a party looking to stay a final Commission order must first request a stay from the Commission. However, the parties raised another issue in their recent filings with this Court. As such, we also consider events subsequent to the issuance of our order denying the City's motion for stay—namely, the City's request to the Commission for a stay, the Commission's order granting that stay, and El Paso Electric Company's motion for relief from that order. For the reasons explained in this opinion, we reject the arguments that the Commission lacked jurisdiction to grant the City's request for a stay.
{3} While the facts that gave rise to the City's stay request are not determinative of the procedural questions addressed in this opinion, we briefly discuss how this matter came before us to provide context for our discussion.
{4} This case concerns an appeal from a final Commission order involving the Renewable Energy Act (Act), NMSA 1978, Sections 62-16-1 to -10 (2004, as amended through 2019). Under the Act, public utilities must meet the requirements of the renewable portfolio standard (Standard). Section 62-16-4 (2014). As it existed during the proceedings before the Commission in this case, the Standard required renewable energy to comprise at least fifteen percent of each public utility's total retail sales to New Mexico customers through 2019 and at least twenty percent in 2020 and thereafter. Section 62-16-4(A)(1), (2) (2014); 17.9.572.10(B)(2), (3) NMAC. A public utility was not required to incur the cost of procuring renewable energy necessary to comply with the Standard if, in a given year, that cost would exceed "the reasonable cost threshold" (Threshold) set by the Commission. Section 62-16-4(C) (2014). The Threshold limits the impact on New Mexico consumers resulting from the public utility's compliance with the Standard. See § 62-16-2(A)(6), (B)(3) (2007); 17.9.572.12 NMAC. Affected utilities fulfill their renewable energy obligations by procuring renewable energy certificates (Certificates). Section 62-16-5(A), (B) (2007) (); 17.9.572.13(A) NMAC (). Since this opinion relates solely to limited procedural matters, and not the City's underlying appeal of the Commission's final order, we note simply that the price of the Certificates is the focus of the City's substantive challenge to the Commission's final order.
{5} Given this background regarding some of the Act's key provisions, we now briefly summarize the proceedings before the Commission. This administrative matter began with El Paso Electric Company (El Paso Electric) submitting its 2018 annual renewable energy plan to the Commission for approval. See § 62-16-4(F)-(I) (); 17.9.572.14 NMAC (); 17.9.572.17(A) NMAC (). In its application to the Commission, El Paso Electric sought a ten-year extension of its agreement with the Camino Real Landfill to Energy Facility (Camino Real Facility) to purchase Certificates from the Camino Real Facility at a price of $30 per megawatt hour of renewable energy. El Paso Electric's proposal doubled the $15 per megawatt hour price for the Certificates under its existing agreement with the Camino Real Facility, which expired on December 31, 2018.
{6} The Commission's hearing examiner recommended denial of El Paso Electric's proposal. The hearing examiner concluded that the proposal was not supported by the law or evidence and was contrary to the Act's policy of protecting New Mexico consumers against the costs incurred by the public utility to comply with the Standard. El Paso Electric filed an exception to the hearing examiner's recommended decision. Based on that exception, the Commission asked whether El Paso Electric and the owner of the Camino Real Facility would accept a $25 price for the Certificates. The Camino Real Facility's owner responded that a $25 price "jeopardizes the viability of the project." To avoid endangering the plan, the Commission's final order approved the $30 Certificate price.
{7} The City filed a motion for rehearing, but the Commission denied the motion. Notably, in its rehearing request, the City did not ask the Commission to stay any portion of its final order. El Paso Electric's revised Renewable Portfolio Standard Cost Rider, Rate No. 38, took effect on January 1, 2019.
{8} After the Commission denied the City's rehearing request, the City filed a notice of appeal on January 4, 2019, seeking our review of the Commission's final order. On February 8, 2019, the City asked this Court to stay the portion of the Commission's order that approved El Paso Electric's agreement with the Camino Real Facility to purchase the Certificates at a $30 price for a ten-year term beginning on January 1, 2019.
{9} El Paso Electric intervened, as did Four Peaks Energy LLC (Four Peaks) and ENERGYneering Solutions, Inc. (Energy Solutions), the new owner and new operator, respectively, of the Camino Real Facility. Four Peaks and Energy Solutions opposed the City's stay motion, arguing in part that the City failed to exhaust its administrative remedies by first seeking a stay from the Commission. On July 26, 2019, we denied the City's motion for partial stay. Our order explicitly stated that the Court's denial of the City's motion did not preclude the City from seeking a stay before the Commission. We also indicated that we would file an opinion explaining the basis for our decision.
{10} In accordance with our July 26, 2019, order, on September 27, 2019, the City sought a stay from the Commission. El Paso Electric opposed the City's motion for stay, arguing only that the Commission lacked jurisdiction to consider the motion. The Commission granted the City's motion for stay on November 6, 2019. The Commission's November 6, 2019, order granting the stay did not modify the substance of the Commission's final order; it simply stayed part of the final order concerning the Certificate payments to the Camino Real Facility.
{11} Shortly after the Commission granted the stay, El Paso Electric filed a motion for relief with this Court, which Four Peaks and Energy Solutions joined, seeking to vacate and annul the Commission's stay order. In its motion, El Paso Electric presented three arguments. First, El Paso Electric alleged that the Commission's November 6, 2019, stay order conflicts with this Court's July 26, 2019, order....
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